Case 6:21-cv-00984-ADA Document 26 Filed 02/10/22 Page 1 of 15
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`Case No. 6:21-CV-00984-ADA
`
`PATENT CASE
`
`JURY TRIAL DEMANDED
`
`JAWBONE INNOVATIONS, LLC,
`Plaintiff(s),
`
`v.
`APPLE INC.,
`
`Defendant(s).
`
`
`
`
`
`
`
`DEFENDANT’S REPLY IN SUPPORT OF ITS
`RENEWED MOTION TO DISMISS FIRST AMENDED COMPLAINT
`PURSUANT TO FED. R. CIV. P. 12(b)(6) FOR FAILURE TO STATE A CLAIM
`
`
`
`
`

`

`Case 6:21-cv-00984-ADA Document 26 Filed 02/10/22 Page 2 of 15
`
`TABLE OF CONTENTS
`
`I.
`
`ARGUMENT ...................................................................................................................... 1
`
`Jawbone Innovations Fails to Allege Facts Showing Apple Had Pre-Suit
`A.
`Knowledge of the Asserted Patents ...................................................................................... 1
`
`1. Jawbone Innovations’s Allegations Regarding Envision IP Do Not Sufficiently
`Plead Knowledge of the Patents .......................................................................... 2
`
`2. Jawbone Innovations’s Allegations That Apple Had Knowledge of the Asserted
`Patents Based on Apple’s Disclosure of the ’091 Patent to the Patent Office Are
`Insufficient ........................................................................................................... 3
`
`Jawbone Innovations Fails to Allege Facts Sufficient to Show Apple Was Willfully
`B.
`Blind to the Existence of the Asserted Patents ..................................................................... 6
`
`Jawbone Innovations Fails to Allege Facts Sufficient to Show Apple Had Specific
`C.
`Intent to Induce Infringement ............................................................................................... 8
`
`Jawbone Innovations’s Allegations Do Not Sufficiently Allege Apple Deliberately
`D.
`and Intentionally Infringed the Patents ................................................................................ 9
`
`II.
`
`CONCLUSION ................................................................................................................... 9
`
`
`
`
`
`
`
`
`
`
`ii
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`

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`Case 6:21-cv-00984-ADA Document 26 Filed 02/10/22 Page 3 of 15
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Affinity Labs of Texas, LLC v. Toyota Motor N. Am.,
`No. W:13-CV-365, 2014 WL 2892285 (W.D. Tex. May 12, 2014) .........................................8
`
`Bos. Sci. Corp. v. Nevro Corp.,
`No. CV 16-1163-CFC, 2021 WL 4262668 (D. Del. Sept. 20, 2021) ........................................1
`
`Corephotonics, Ltd. v. Apple, Inc.,
`2018 WL 4772340 (N.D. Cal. Oct. 1, 2018) ..........................................................................4, 8
`
`Finjan, Inc. v. Juniper Networks, Inc.,
`No. C 17-05659 WHA, 2018 WL 905909 (N.D. Cal. Feb. 14, 2018) .......................................3
`
`Frac Shack Inc. v. AFT Petroleum (Texas) Inc.,
`No. 7:19-cv-26-DC, 2019 WL 3818048 (W.D. Tex. June 13, 2019) ....................................1, 2
`
`Glob.-Tech Appliances, Inc. v. SEB S.A.,
`563 U.S. 754 (2011) ...................................................................................................................7
`
`Helios Streaming, LLC v. Vudu, Inc.,
`No. CV 19-1792-CFC-SRF, 2021 WL 254069 (D. Del. Jan. 26, 2021)....................................6
`
`Intell. Pixels Ltd. v. Sony Interactive Ent. LLC,
`No. SACV-20-1422 ...................................................................................................................6
`
`Intell. Ventures I LLC v. Symantec Corp.,
`234 F. Supp. 3d 601 (D. Del. 2017), aff’d, 725 F. App’x 976 (Fed. Cir. 2018) ........................4
`
`Kaneka Corp. v. SKC Kolon PI, Inc.,
`198 F. Supp. 3d 1089 (C.D. Cal. 2016) .................................................................................5, 6
`
`Kewazinga Corp., v. Microsoft Corp.,
`No. 1:18-CV-4500-GHW, 2021 WL 4066596 (S.D.N.Y. Sept. 1, 2021) ..............................5, 6
`
`Kirsch Research & Dev., LLC v. IKO Indus., Inc.
` No. 6:20-cv-00317-ADA, 2021 WL 4555608, at *2 (W.D. Tex. Oct. 4, 2021) .........................3
`
`Longhorn Vaccines & Diagnostics, LLC v. Spectrum Sols. LLC,
`No. 220CV00827DBBJCB, 2021 WL 4324508 (D. Utah Sept. 23, 2021) ...............................4
`
`Parity Networks, LLC v. Cisco Sys., Inc.,
`No. 6:19-CV-00207-ADA, 2019 WL 3940952 (W.D. Tex. July 26, 2019) ..........................2, 3
`
`iii
`
`
`

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`Case 6:21-cv-00984-ADA Document 26 Filed 02/10/22 Page 4 of 15
`
`In re S. Scrap Material Co., LLC,
`541 F.3d 584 (5th Cir. 2008) .....................................................................................................7
`
`SIMO Holdings Inc. v. Hong Kong uCloudlink Network Tech. Ltd.,
`396 F. Supp. 3d 323 (S.D.N.Y. 2019) ....................................................................................5, 6
`
`Software Rsch., Inc. v. Dynatrace LLC,
`316 F. Supp. 3d 1112 (N.D. Cal. 2018) .....................................................................................6
`
`Tinnus Enters., LLC v. Telebrands Corp.,
`846 F.3d 1190 (Fed. Cir. 2017)..................................................................................................8
`
`Ultravision Tech., LLC v. Govision LLC,
`No. 2:18-cv-00100-JRG-RP, 2020 WL 1542371 (E.D. Tex.) ...................................................7
`
`Other Authorities
`
`Fed. R. Civ. P. 9(b) ..........................................................................................................................9
`
`
`
`iv
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`
`

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`Case 6:21-cv-00984-ADA Document 26 Filed 02/10/22 Page 5 of 15
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`After Jawbone Innovations amended its complaint, the allegations of indirect and willful
`
`infringement remained inadequately pled. Apple renewed its motion to dismiss. In its opposition,
`
`Jawbone Innovations offers no compelling reason or authority for finding its speculations and
`
`conclusory recitals of claim elements suffice. The first amendment complaint (“FAC”) fails to
`
`state a claim for willful and indirect infringement at least because the allegations fail to lead to a
`
`plausible inference that Apple knew of the asserted patents. The willful infringement claim fails
`
`for another reason—the FAC contains no factual allegations that Apple deliberately and
`
`intentionally infringed. As for indirect infringement, Jawbone Innovations did not allege Apple
`
`had the specific intent to induce infringement, an element separate from knowledge, which
`
`Jawbone Innovations also failed to sufficiently plead. Despite having the benefit of Apple’s motion
`
`to dismiss the original complaint before it when Jawbone Innovations amended its complaint, the
`
`willful and indirect infringement allegations fall far short of the pleading standard. Jawbone
`
`Innovations does not deserve a third chance. Apple requests the Court grant the motion to dismiss
`
`the claims for willful and indirect infringement with prejudice.
`
`I.
`
`ARGUMENT
`A.
`
`Jawbone Innovations Fails to Allege Facts Showing Apple Had Pre-Suit
`Knowledge of the Asserted Patents
`
`Jawbone Innovations alleges two theories for how Apple allegedly came to have
`
`knowledge of the asserted patents. Neither leads to a plausible inference that Apple knew of the
`
`asserted patents—a deficiency that is fatal to its willful and indirect infringement claims.1
`
`
`1 Jawbone Innovations requests the Court apply its reasoning in Frac Shack Inc. v. AFT Petroleum
`(Texas) Inc., No. 7:19-cv-26-DC, 2019 WL 3818048 , at *2 (W.D. Tex. June 13, 2019), to deny
`Apple’s motion because the original complaint put Apple on notice of the patents and Jawbone’s
`infringement theories. (Opp. at 5.) Recently, another court has taken a different approach. See Bos.
`Sci. Corp. v. Nevro Corp., No. CV 16-1163-CFC, 2021 WL 4262668, at *5 (D. Del. Sept. 20,
`2021) (adopting the rule that the operative complaint in a lawsuit fails to state a claim for indirect
`and willful infringement where the defendant’s alleged knowledge of the asserted patents is based
`1
`
`
`
`

`

`Case 6:21-cv-00984-ADA Document 26 Filed 02/10/22 Page 6 of 15
`
`1.
`
`Jawbone Innovations’s Allegations Regarding Envision IP Do Not
`Sufficiently Plead Knowledge of the Patents
`
`Phrases like “on information and belief” cannot transform Jawbone Innovations’s
`
`speculations into well-pleaded facts that the Court must take as true. Jawbone Innovations’s
`
`allegations fall well short of adequately alleging that Apple had any contacts with third party
`
`Envision IP, much less any such contact that conferred knowledge of the patents upon Apple.
`
`Jawbone Innovations alleges only, “Upon information and belief, Envision IP (and other parties)
`
`contacted Apple regarding the value of the Patents-in-Suit, including regarding Apple’s
`
`infringement of the Patents-in-Suit.” (FAC ¶22.) That allegation amounts to Jawbone Innovations
`
`guessing that Envision IP and other parties contacted Apple—there is no basis for this or any other
`
`similar contact other than Jawbone Innovations guessing that it happened.
`
`The case that Jawbone Innovations cites supports Apple on this point. In Parity Networks,
`
`LLC v. Cisco Sys., Inc., No. 6:19-CV-00207-ADA, 2019 WL 3940952, at *2-3 (W.D. Tex. July
`
`26, 2019), the plaintiff pleaded that the plaintiff had sent two letters dated October 5, 2016, and
`
`November 28, 2016, to the defendant notifying the defendant about the patents in suit. The plaintiff
`
`further pleaded that the defendant’s counsel responded to the letters on February 23, 2017,
`
`representing that it would investigate and respond to the plaintiff. Id. at *3. The plaintiff even
`
`submitted the correspondence for the Court to review. Id. This Court found the allegations
`
`regarding the defendant’s receipt of the letters prior to the complaint sufficiently alleged a viable
`
`claim for willful infringement. Id. In contrast, Jawbone Innovations’s factual allegations lack the
`
`facts necessary to “nudge the claims across the line from conceivable to plausible.” Twombly, 550
`
`U.S. at 570.
`
`
`solely on the content of that complaint or a prior version of the complaint filed in the same lawsuit).
`Even if the Court applies Frac, Apple requests the Court grant Apple’s motion in part by
`dismissing claims of pre-suit willful or indirect infringement.
`2
`
`
`

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`Case 6:21-cv-00984-ADA Document 26 Filed 02/10/22 Page 7 of 15
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`Jawbone Innovations’s allegations do not plausibly state that Apple had knowledge based
`
`on the purported Envision (or any other) contact. For example, in Kirsch Research & Dev., LLC
`
`v. IKO Indus., Inc., this Court accepted as true the plaintiff’s allegations that the defendants’
`
`representative contacted the plaintiff about selling plaintiff’s patented and marked products., No.
`
`6:20-cv-00317-ADA, 2021 WL 4555608, at *2 (W.D. Tex. Oct. 4, 2021). But this Court found the
`
`allegations did not have sufficient information about the “nature, content, and depth” of the
`
`contact. Id. Here, Jawbone Innovations’s allegations do not include specifics about what the
`
`purported contact with Envision IP (or these other parties) involved, much less whether the nature,
`
`content, and depth put Apple on notice of the asserted patents. For example, courts have found
`
`general discussions about a patent portfolio do not confer knowledge of the particular patents in
`
`suit. See Finjan, Inc. v. Juniper Networks, Inc., No. C 17-05659 WHA, 2018 WL 905909, at *3
`
`(N.D. Cal. Feb. 14, 2018) (finding purported discussions of plaintiff’s patent portfolio “hardly
`
`translates to specifically alerting Juniper to infringement of the patents-in-suit.”). As this Court
`
`reasoned in Kirsch, “it is not the Court’s role to guess where on the spectrum the alleged contact
`
`lays.” Kirsch, 2021 WL 4555608, at *2. Jawbone Innovations’s allegations regarding Envision IP
`
`(and other parties) are thus insufficient to establish that Apple plausibly knew of the patents.
`
`2.
`
`Jawbone Innovations’s Allegations That Apple Had Knowledge of the
`Asserted Patents Based on Apple’s Disclosure of the ’091 Patent to the
`Patent Office Are Insufficient
`
`Jawbone Innovations is simply wrong in its assertion that an allegation of a single instance
`
`of Apple listing the asserted ’091 Patent in an information disclosure statement to the United States
`
`Patent Office is sufficient to plead Apple knew of the ’091 patent and the other eight asserted
`
`patents. (FAC ¶23.)
`
`3
`
`
`

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`Case 6:21-cv-00984-ADA Document 26 Filed 02/10/22 Page 8 of 15
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`(a) Mere Citation to Patent Office is Insufficient to Allege
`Knowledge of the ’091 Patent
`
`The cases Jawbone Innovations (Opp. at 6-7) cites for the faulty proposition that it has met
`
`the pleading requirements for knowledge of the ’091 patent are distinguishable. The Corephotonics
`
`plaintiff alleged Apple had cited the asserted patent “in multiple filings in Apple’s own patent
`
`applications” and that the plaintiff had shared its technology with Apple over several years.
`
`Corephotonics, Ltd. v. Apple, Inc., 2018 WL 4772340, at *8 (N.D. Cal. Oct. 1, 2018). Similarly,
`
`the Longhorn Vaccines plaintiff alleged the defendant cited “one or more” of the asserted patents
`
`in not one but four information disclosure statements. Longhorn Vaccines & Diagnostics, LLC v.
`
`Spectrum Sols. LLC, No. 220CV00827DBBJCB, 2021 WL 4324508, at *4 (D. Utah Sept. 23,
`
`2021). Jawbone Innovation’s allegation of Apple’s one-off citation to the lone ’091 patent does
`
`not compare in magnitude to the multiple citations in other cases that made the allegations of
`
`knowledge plausible.
`
`Consistent with the facts and reasoning of Corephotonics and Longhorn Vaccines, the court
`
`in Intellectual Ventures found that citation to the asserted patent without more is “not sufficient to
`
`conclude Symantec had knowledge of the patent for willfulness purposes.” Intell. Ventures I LLC
`
`v. Symantec Corp., 234 F. Supp. 3d 601, 611 (D. Del. 2017), aff'd, 725 F. App'x 976 (Fed. Cir.
`
`2018). Jawbone Innovations’s attempt to undermine Intellectual Ventures by arguing the case is
`
`procedurally inapt has no merit. (Opp. at 11.) Although the Intellectual Ventures decision was on
`
`a motion for summary judgment, the court accepted as true that the defendant did in fact cite to
`
`the asserted patent and found that alleged fact insufficient. Intell. Ventures I LLC v. Symantec
`
`Corp., 234 F. Supp. 3d at 611. Tellingly, the Intellectual Ventures decision cited another case that
`
`applied the same reasoning to grant a motion to dismiss allegations of willful infringement. See id.
`
`(citing Spherix Inc. v. Juniper Networks, Inc., No. CV 14-578-SLR, 2015 WL 1517508, at *3 (D.
`
`4
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`
`

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`Case 6:21-cv-00984-ADA Document 26 Filed 02/10/22 Page 9 of 15
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`Del. Mar. 31, 2015) (reasoning the fact that the asserted “’123 patent was referenced during
`
`prosecution of two of defendant’s over 1,700 patents is not compelling evidence of knowledge”)).
`
`None of Jawbone Innovations’s arguments or cited cases support finding that a single citation to
`
`the ’091 patent—without more—is sufficient to draw a reasonable inference that Apple had
`
`knowledge of the patent for willfulness purposes.
`
`(b) Mere Citation to the Patent Office of ’091 Patent is Insufficient
`to Allege Knowledge of the Eight Other Asserted Patents
`
`Nor do Jawbone Innovations’s three cases support the proposition that the alleged single
`
`citation to the ’091 patent is sufficient to support an inference that Apple knew of the eight other
`
`asserted patents. In all three cases (Opp. at 8), the courts concluded a reasonable juror could find
`
`knowledge of the asserted patent based on knowledge of a related patent and other substantial
`
`circumstantial evidence. Here, Jawbone Innovations just guesses that Apple may have searched
`
`for other related patents and therefore may have come across them. And its cases relate to evidence
`
`adduced at trial, not to sufficient pleadings.
`
`First, the trial evidence in SIMO Holdings Inc. showed the defendant’s internal architecture
`
`documents “[bore] notable similarities” to the asserted patent. SIMO Holdings Inc. v. Hong Kong
`
`uCloudlink Network Tech. Ltd., 396 F. Supp. 3d 323, 334 (S.D.N.Y. 2019). Second, in Kaneka
`
`Corp. v. SKC Kolon PI, Inc., 198 F. Supp. 3d 1089, 1108 (C.D. Cal. 2016), the circumstantial
`
`evidence presented at trial supporting an inference of knowledge of the patent included a
`
`defendant’s engineer “trying to search as many patents as possible” in the relevant field and a
`
`training manual including a depiction of an embodiment from the Japanese version of the asserted
`
`patent. And third, in Kewazinga Corp., v. Microsoft Corp., No. 1:18-CV-4500-GHW, 2021 WL
`
`4066596, at *17 (S.D.N.Y. Sept. 1, 2021), the trial evidence showed that Microsoft met with the
`
`plaintiff about alleged infringement of two patents related to the asserted patent. The court found
`
`5
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`
`

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`Case 6:21-cv-00984-ADA Document 26 Filed 02/10/22 Page 10 of 15
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`“based on all of the circumstances,” the jury could have found Microsoft knew of the asserted
`
`patent. Id.
`
`Jawbone Innovations does not allege any facts similar in detail as in SIMO, Kaneka, or
`
`Kewaszina. Its bare assertion that “based on Apple’s knowledge of the ’091 Patent, it is plausible
`
`that Apple investigated the ’091 Patent and its inventor, Dr. Gregory Burnett, and discovered the
`
`other Patents-in-Suit,” without more, is insufficient. (Opp. at 8.) See Intell. Pixels Ltd. v. Sony
`
`Interactive Ent. LLC, No. SACV-20-1422 JVS(KESx), 2020 WL 7872961, at *2 (C.D. Cal. Nov.
`
`20, 2020) (finding allegations that Sony knew of the asserted patent because it allegedly monitored
`
`the ’109 patent application and knew when it issued were insufficient). And while some courts
`
`have declined to follow the finding in Vasudevan Software because it was decided without the
`
`benefit of the Supreme Court’s decision in Halo, other courts continue to apply the rule: “[t]he
`
`requisite knowledge of the patent allegedly infringed simply cannot be inferred from mere
`
`knowledge of other patents, even if somewhat similar.” Software Rsch., Inc. v. Dynatrace LLC,
`
`316 F. Supp. 3d 1112, 1133 (N.D. Cal. 2018); Helios Streaming, LLC v. Vudu, Inc., No. CV 19-
`
`1792-CFC-SRF, 2021 WL 254069, at *5 (D. Del. Jan. 26, 2021), R&R adopted, No. CV 19-1792-
`
`CFC/SRF, 2021 WL 1138024 (D. Del. Mar. 25, 2021). Jawbone Innovations cites no compelling
`
`authority or reason for the Court to find Jawbone Innovations’s conclusory allegation regarding a
`
`single citation is sufficient to plead Apple had knowledge of the ’091 patent and the other eight
`
`asserted patents for purposes of making out a claim for willful or indirect infringement.
`
`B.
`
`Jawbone Innovations Fails to Allege Facts Sufficient to Show Apple Was
`Willfully Blind to the Existence of the Asserted Patents
`
`Jawbone Innovations attempts to save its induced infringement claim by pleading that, in
`
`the alternative to having knowledge of the patents, Apple was willfully blind to the existence of
`
`the patents. “[A] willfully blind defendant is one who takes deliberate actions to avoid confirming
`
`6
`
`
`

`

`Case 6:21-cv-00984-ADA Document 26 Filed 02/10/22 Page 11 of 15
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`a high probability of wrongdoing and who can almost be said to have actually known the critical
`
`facts.” Glob.-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 769 (2011). But Jawbone
`
`Innovations does no more than offer “threadbare recitals” of the elements of willful blindness: “As
`
`a sophisticated technology company, to the extent Defendant failed to investigate its infringement
`
`upon learning of the ’091 patent, it has been willfully blind.” (FAC, ¶58.)
`
`Jawbone Innovations cites Ultravision Tech., LLC v. Govision LLC, No. 2:18-cv-00100-
`
`JRG-RP, 2020 WL 1542371, at *1-2 (E.D. Tex.), for the erroneous proposition that “no further
`
`allegations are needed.” (Opp. at 9.) The court in Ultravision reasoned that the pleading standard
`
`“simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence
`
`of the necessary claims or elements.” In re S. Scrap Material Co., LLC, 541 F.3d 584, 587 (5th
`
`Cir. 2008) (emphasis added). The Fifth Circuit found the following factual allegations by the
`
`United States were “enough facts” to support a claim for recovering the cost of removing of a
`
`sunken in a navigable waterway:
`
`Specifically, the United States alleges that Southern Scrap was the owner and
`operator of a dry dock that, by virtue of its being swept away and sunken by
`Hurricane Katrina, became a significant hazard to navigation in the Industrial
`Canal, one of the country's navigable waterways, and that the dry dock was a
`sunken vessel, which under federal law had to be removed from the Industrial Canal
`in order to eliminate its hazard to navigation. The United States further alleges that,
`upon contacting representatives of Southern Scrap less than two weeks after
`Hurricane Katrina struck, it was advised that Southern Scrap was unable to remove
`its dry dock from the Industrial Canal in a timely manner. Moreover, the United
`States alleges that, in the opinion of the Corps the dry dock's obstruction stopped,
`seriously interfered with, or specially endangered navigation; and that the Secretary
`duly exercised his discretion to have the sunken vessel removed from the channel.
`Consequently, the United States avers, the Corps proceeded to have the sunken dry
`dock removed for a cost of over $7 million, which greatly exceeds the value of the
`wrecked dry dock.
`
`Id. at 590–91. The factual allegations in Southern Scrap Material did far more than provide a
`
`single sentence comprising one part speculation and another part conclusory statement. Jawbone
`
`7
`
`
`

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`Case 6:21-cv-00984-ADA Document 26 Filed 02/10/22 Page 12 of 15
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`Innovations is simply wrong; further allegations are needed. See Corephotonics, 2018 WL
`
`4772340, at *9-10 (finding plaintiff’s willful blindness allegations plausible where, inter alia,
`
`defendant allegedly asked plaintiff not to send defendant any patents if and when they issued).
`
`Having failed to plead factual allegations regarding the steps that Apple allegedly took to remain
`
`willfully blind, Jawbone Innovations’s induced infringement claims should be dismissed.
`
`C.
`
`Jawbone Innovations Fails to Allege Facts Sufficient to Show Apple Had
`Specific Intent to Induce Infringement
`
`Jawbone Innovations has not pleaded the requisite specific intent to induce infringement.
`
`That Jawbone Innovations alleged Apple induced infringement by providing manuals and other
`
`instructional materials does not go to the issue of whether Apple specifically intended to induce
`
`infringement. See Affinity Labs of Texas, LLC v. Toyota Motor N. Am., No. W:13-CV-365, 2014
`
`WL 2892285, at *7 (W.D. Tex. May 12, 2014) (“Plaintiffs generalized allegations that Toyota
`
`induced others to infringe the Asserted patents through its marketing and sales tactics are likewise
`
`insufficient.”). Jawbone Innovations’s statement that Affinity Labs “dealt with different
`
`allegations” is inaccurate. (Opp. at 10.) The plaintiff in Affinity Labs, like Jawbone Innovations,
`
`alleged that Toyota induced customers to infringe by marketing and selling automobiles that
`
`contained sound systems that can pair with portable electronic devices in a way that leads to direct
`
`infringement. Affinity Labs of Texas, LLC, 2014 WL 2892285, at *7. The allegations contained
`
`conclusory and speculative facts that did not specify how the marketing and selling activities
`
`supported an inference that the defendant had the specific intent to induce infringement. Id. at *8.
`
`Jawbone Innovations’ allegations suffer the same flaw. (Mot. at 8-9.)
`
`None of Jawbone Innovations’s cases help its cause. Tinnus Enters., LLC v. Telebrands
`
`Corp., 846 F.3d 1190, 1204 (Fed. Cir. 2017), stands for the unremarkable proposition that
`
`instruction manuals can be used to prove indirect infringement, but it is silent on what is required
`
`8
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`
`

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`Case 6:21-cv-00984-ADA Document 26 Filed 02/10/22 Page 13 of 15
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`to state a claim for indirect infringement. And Jawbone Innovations’s assertion that knowledge
`
`and intent may be “averred generally” cites to a case that sets forth requirements for pleading
`
`inequitable conduct under Rule 9(b), which applies when alleging fraud or mistake. (Opp. at 9.)
`
`Exergen is thus inapplicable here. Because Jawbone Innovations has failed to meet the pleading
`
`requirements for specific intent, Jawbone Innovations’s induced infringement claims should be
`
`dismissed.
`
`D.
`
`Jawbone Innovations’s Allegations Do Not Sufficiently Allege Apple
`Deliberately and Intentionally Infringed the Patents
`
`As explained above, Jawbone Innovations’s willful infringement claim fails because it did
`
`not allege sufficient facts to show Apple knew about the asserted patents. Further, Jawbone
`
`Innovations failed to allege that Apple deliberately infringed. Jawbone Innovations makes no
`
`attempt to distinguish the ruling from this Court that plaintiffs must plead facts leading to a
`
`plausible inference of deliberate infringement apart from fact alleging knowledge of the patent.
`
`(Mot. at 11 (citing Monolithic Power Sys., Inc. v. Meraki Integrated Cir. (Shenzhen) Tech., Ltd.,
`
`No. 6:20-CV-008876, 2021 WL 3931910, at *5 (W.D. Tex. Sept. 1, 2021). Jawbone Innovations
`
`also fails to explain why its mere recitation of claim elements regarding Apple’s allegedly taking
`
`steps to avoid learning that its actions infringed suffice. (Mot. at 10-11.) Jawbone Innovations
`
`raises no meaningful response to Apple’s argument that it has failed to allege deliberate and
`
`intentional infringement. The willful infringement claim should be dismissed.
`
`II.
`
`CONCLUSION
`
`Because Jawbone Innovations failed to cure its deficient pleadings in the First Amended
`
`Complaint, Apple respectfully requests that the claims for induced infringement and willful
`
`infringement be dismissed with prejudice.
`
`9
`
`
`

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`Case 6:21-cv-00984-ADA Document 26 Filed 02/10/22 Page 14 of 15
`
`Dated: February 10, 2022
`
`FISH & RICHARDSON P.C.
`
`By: /s/ Ricardo J. Bonilla
`
`J. Stephen Ravel
`Texas State Bar No. 16584975
`KELLY HART & HALLMAN LLP
`303 Colorado, Suite 2000
`Austin, Texas 78701
`Tel: (512) 495-6429
`Email: steve.ravel@kellyhart.com
`
`Ricardo J. Bonilla
`Texas Bar No. 24082704
`rbonilla@fr.com
`FISH & RICHARDSON P.C.
`1717 Main Street, Suite 5000
`Dallas, TX 75201
`(214) 747-5070 – Telephone
`(214) 747-2091 – Facsimile
`
`Benjamin C. Elacqua
`Texas Bar No. 24055443
`elacqua@fr.com
`FISH & RICHARDSON P.C.
`1221 McKinney Street, Suite 2800
`Houston, Texas 77010
`(713) 654-5300 – Telephone
`(713) 652-0109 – Facsimile
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`Betty H. Chen
`Texas Bar No. 24056720
`bchen@fr.com
`FISH & RICHARDSON P.C.
`500 Arguello St., Suite 500
`Redwood City, CA 94063
`(650) 839-5067 – Telephone
`(650) 839-5071 - Facsimile
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`COUNSEL FOR DEFENDANT
`APPLE INC.
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`Case 6:21-cv-00984-ADA Document 26 Filed 02/10/22 Page 15 of 15
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the above and foregoing
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`document has been served on February 10, 2022, to all counsel of record who are deemed to have
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`consented to electronic service via the Court’s CM/ECF system.
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`/s/ Ricardo J. Bonilla
`Ricardo J. Bonilla
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